The Litmus Test

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S1: This ad free podcast is part of your Slate plus membership, the hearing to confirm Judge Amy Barrett to the Supreme Court will now begin. The GOP has long been aware that they should focus on the wrapping paper and not the toxic mess that is. It’s a bit like it’s a sincere question. I’m generally curious. No hints, no previews, no forecasts.

S2: Hi and welcome back to Amicus. This is Slate’s podcast about the courts and the law and the rule of law and the US Supreme Court. I’m Dahlia Lithwick. I write about those things for Slate this week. Usually an off week for us on the show is, of course, an odd week for us on the show because we spent it watching the historic hearings of Judge Amy CONI Barrett, who will likely be voted on and confirmed and seated at the highest court of the land in a matter of weeks. There’s a good deal to say about these hearings and also not much to say.

S3: The hearings themselves went off without much variance from the usual script for your president fills five years worth of vacancies. Why? Well, because he can. And as our guest, Robert Raybon, predicted last week on this show, Senate Democrats tried to highlight the real world impacts of what it’s going to be like to have a six to three Supreme Court that will empirically be the most conservative court we have seen in over a century. But as Lindsey Graham was quick to note, none of that really mattered because he had the votes. He had them before the curtains even rose on Monday night. Later on in the show, we’re going to talk to Professor Pam Karlan of Stanford Law School. She’s the person that Twitter and if you’ll recall, Ellie Mistal on this show just a few weeks back, had broadly all selected to do 100 percent of the questioning by the Democrats in these hearings. Slate plus listeners are going to get an extended version of that interview with Pam Karlan. Thank you. Thank you for supporting the work we do. But first, I wanted to talk to Elise Hogue. Elise is the president of NARAL Pro-Choice America, where she has led that organization in the fight for reproductive freedom since 2013. Under her leadership, NARAL has become an organizing powerhouse across the country, tripling its membership to two and a half million people, advancing state and federal legislation to protect and expand abortion access, and fighting an unprecedented wave of abortion bans that have happened at the state level in the last few years. Elise is also the author of The Lie that Binds, published this past summer. It’s a totally compelling, I think must read story of how the formerly non-partisan issue of abortion rights was reinvented to become the sharp point of the spear for a much larger movement that was bent on maintaining control in a changing world. If you read her book or listen to the podcast that came out with it this summer, you would have not been in any way surprised by the events of the past few weeks since the death of Justice Ginsburg. Elise, welcome to Amicus. I’m so glad to have you.

S4: I’m so happy to be here. Dahlia, thank you.

S3: I want to just flag that we are both recording from our homes in covid. And to the extent that there are little people or at my house, a weed whacker or an extremely loud teenager, that’s all happening. And that’s just what it is. So I think I want to start, as I must with the hearings. I know you’ve watched a lot of them. I’ve watched a lot of them. It’s just right. Formulaic nominee says nothing, pledges to have open mind, refuses to opine on any hypothetical future case, refuses to opine on any settled past case beyond, I guess Marbury did any element of the evasions and the I can’t answer and the blank slate kabuki surprise you or was this just pretty much the norm?

S4: I mean, I think it’s unfortunate and how much of the norm it was that we have come to expect, because what is happening is the antithesis of normal. And, you know, what we saw was a tremendous amount of gaslighting, obfuscation and nonanswers, as you say, from the nominee, but compounded by the fact that the GOP was rewriting history sitting in the hearing room, as they are wont to do. I mean, even that, unfortunately, has come to be known as the. Warm and, you know, I think it is incredibly dangerous. I said, even as I’m saying it, that we see that as the norm when in fact, the role and responsibility of senators on both sides of the aisle to actually legitimate the court, which stopped happening a while ago, but really was driven home with their rush to confirm this nominee and to vet this nominee for her. What is a reasonably extensive record since a lot of times they like blank slates, it felt normal. And that in and of itself is deeply appalling.

S3: So I want to pick up right where you just left off, Elise, because I think this was different to me than, say, a nominee like Clarence Thomas who could, I guess, plausibly claim he had never discussed Roe. It law school had never thought about it. This is a nominee who, you know, as a private citizen, find ads calling abortion barbaric and infamous, seeking its reversal. She gave talks as an academic. She wrote papers as an academic. And then in her three years on the federal bench, she certainly wrote opinions and dissents that suggested that things that were, I thought, settled principles of Casey, parental notification waivers. Those things are also up for grabs. So there’s a way in which this is not an ambiguous record. In fact, it’s so unambiguous that the president can crow about what’s going to happen. Josh Holley can crow about what’s going to happen. Lindsey Graham can crow. This is a person who’s going to strike down Roe. And yet she still sort of managed to pull off the claim that she had no dog in this fight. And that’s that’s a sea change. Right. Even Gorsuch and Cavnar didn’t have the, like, hutzpah to suggest that, oh, don’t mind, you know, decades of advocacy and clear material thinking and work on this issue today. I am a different person.

S4: Well, I need to underscore what you said, which is this nominee’s record is extremely clear and in fact, not that long ago would be disqualifying. And that is a really important thing to know for your listeners, because in some ways we are all the frogs in the GOP’s boiling water. Right. They have had a strategy of normalization of what are extreme actions and extreme views for some time. And we grow complicit when we actually forget what it used to be like. And so this nominee’s record would have been disqualifying not that long ago. And that’s crucially important because you’re correct, her nomination is dangerous. It’s dangerous to fundamental rights and freedoms that we should be able to take as sacrosanct, including the fundamental right to make your own decision about whether or not you want to carry a pregnancy to term or seek an abortion. And I think that what they were out to do and this is gets to your point about her not being Cavnar or Gorsuch, is put a nice reasoned face on it. And we know this nominee, right. She’s been before this committee before she was confirmed for a circuit court position. And we knew that she was chosen for her poise and her reasonable demeanor in an effort to deflect from the fact that what they are doing, both through this legitimate process and the person that they are nominating, is extraordinarily outside of what most Americans consider mainstream and depend on the court to protect for our individual and collective liberties. And I think that that’s really important now. Was she good at it? She was quite good at it. Right. Did they make it easier for her? Absolutely. I’m trying to imagine and Dahlia, you have been watching the court longer than me when else we’ve had more conversations about who does laundry in our homes and what our family, how do our families get along when we are out there doing the crazy thing of women working right. They absolutely painted a picture of someone who was relatable and took every effort possible to avoid any real conversation about clear statements and rulings that this nominee has affected.

S3: So we actually, in anticipation of you saying just that, prepared a little audio of just the weird fetishization of the children and the parenting. Let’s have a listen.

S5: You’ve got seven kids, not only a Judge Baird, a mother of seven. Your children have been wonderfully well behaved. You’ve raised seven children.

S4: Probably the law of Amy prevails at the Barrett household over those Chelsie 15.

S3: I think we have to also play the capstone, which is, in fact, Senator John Kennedy’s question. I got one last question. I hope it’s an easy one.

S5: It is. It’s it’s a sincere question. I’m generally curious who does laundry in your house?

S3: And I think you’ve flicked at it now at least. But really unpack for me what it means to have Lindsey Graham, Marsha Blackburn, Joni Ernst insisting that this is real feminism, that real feminism happens when for the first time there’s a mom on the court, except, oops, we’ve had two of those. Real feminism happens only when a conservative woman gets to break her glass ceiling. I don’t even know what I’m asking, except can you locate this in some sort of theory of the case? Because my reaction to it was, I cannot quite believe we’re talking about who does laundry at your house.

S4: You know, I mean, I think the GOP has long been aware that they should focus on the wrapping paper and not the toxic mess that is inside it. And that is their definition, right. They knew that they could not sell an agenda that was oppressive to women through only having men ram it down our throats. And so they have insisted for decades that feminism is a sorority where all women should be accepted, and if not, you’re the bad guys versus an actual political philosophy that attacks root causes of gender oppression and works for jurisprudence and public policy, that lifts all women up in an equal status to men in this society. And that is what they were doing with this nominee. It has a long history in the GOP since they turned this corner being stridently misogynistic. Some would argue that Phyllis Schlafly was the godmother of being the face of white women willing to uphold a white patriarchy. Kellyanne Conway has done it quite well. And I would say, you know, if there is a sorority of these women who are antifeminist but want to be the standard bearer, Amy Barrett Berrett certainly made herself a core part of that club this week.

S3: And I was really struck. Alice, I wonder if you heard it, too, when she was in a colloquy about racial justice and what happened when her kids found out about George Floyd, particularly her two adopted kids from Haiti. And her answer was, you know, it was very sad. It was very hard. But, you know, they live in a world where they’re cocooned from that kind of injustice. And for me, that really sent up a flare about the difference between what I think of as Ginsburg’s jurisprudential vision, which is nobody gets to be in a cocoon like the people in the cocoon work to make life fair for the people who are not in the cocoon. And the idea that I guess her children don’t suffer from, you know, being treated as as George Floyd or because she has succeeded as a woman on the federal bench, it’s such a sort of solipsistic world view, again, of what equality is. It’s sort of equality for me and mine. It reminded me a little bit of Brett Kavanaugh’s famous famous gender equality because he hires female clerks.

S4: You know, I thought Senator Booker made that point very well. And I think his his sadness came through in it. You know, this feels so reminiscent of a time that should be long gone where it’s all about the individual and what the individual can get or do or achieve, when, in fact, the majority of America depends on what we know to be a structural critique of inequity. And that is what our stood for. Right. That is what is so offensive about painting this nominee as the heir to RBG basically came from a school of thought and expressed it quite often that it wasn’t just equality. It was. Right, and as long as we didn’t have enshrined in law the potential for everybody to have equitable claim to freedom and justice, we were failing. And this felt like such a regression from what is really a culturally vibrant conversation right now about structural inequity, particularly around race and also around gender. And we certainly know that lots of people who have different kinds of family still can hold racist and misogynistic views. And that is not the question. And that should not be litigated within this nominee’s own family. The question is her responsibility. And I think Justice Sotomayor spoke so clearly to this during her own confirmation process is are we bringing our lived experience to our responsibility in this case as a jurist to make sure that that informs how we create policies that better everyone’s situation? And I would argue and Justice Sotomayor, she takes that very seriously, where as this judge, Judge Amy CONI Barrett, seems to believe that her individual experience can be a proxy for others and nothing could be further from the truth.

S3: At least one of the reasons I really wanted to talk to you this week is because Sheldon Whitehouse spent the bulk of his questioning, both rounds, I think, highlighting the same dark money Federalist Society machine, this tiny operation with lots of big money from mysterious sources, a slush fund that leapfrogs cases to the courts and also finances the amicus briefs and also handpicks the judges. So this is right, Sheldon Whitehouse view of the world.

S5: Let’s listen to the legal groups, all the same funders over and over again, bringing the cases and providing this orchestrated, orchestrated chorus of anarchy. Then the same group also funds the Federalist Society. Over here, The Washington Post wrote a big exposé about this, and that made Leonard Leo a little hot, a little bit like a burned agent. So he had to jump out and he went off to go and do anonymously funded voter suppression work. Guess who jumped in to take over the selection process in this case for Judge Barritt? Carrie Severino made the hop. So once again ties right in together.

S3: One of the frustrations for me is that this is all known right. You wrote about this. Jane Mayer has written about this. Senator Whitehouse has made this point at least three times, I think, on this very podcast. And yet, I swear to you, nobody understood what he was talking about. And he got lampooned as some crazy homeland string theorists, crazy person. But everything he described about this sort of juggernaut of how we pick and seat judges, how we see cases, how the reproductive rights movement has been used as a sword to. Transform both the courts and the conversation around justice. This is all stuff you knew.

S4: Yeah, I mean, one of the things that I find fascinating that’s known history, it’s all in public documentation is that when the Federalist Society, which is the home for aspiring right wing legal eagles, chose abortion and hostility to Roe as a litmus test for folks who want it in their club, they did so not because they actually sort of held more antipathy towards abortion than any other sort of like form of self-expression. But because it tended it to perfectly map on to hostility to other forms of social progress, workers rights, LGBTQ rights, racial justice, voting rights, and that’s what they were going for. It was the whole kit and caboodle. It was a control agenda for a minority of people who had always enjoyed uncontested power versus where that country was going, which was towards a fight for a more pluralistic and inclusive society. That was reflected again in our law and public policy and that sort of notion of the Federalist Society that you could use abortion or hostility towards abortion as the tip of the spear was replicated in research in twenty nineteen by Tresa Undun that showed, you know, like most people presume and this is the fight that the GOP was trying to have with itself this week, most people assume that the indicator for hostility towards abortion rights, legal abortion and ROE is religiosity. That’s demonstrably untrue. Pluralities, if not majorities of people of all faiths actually believe no matter what they themselves think they would do, that they believe this is not a place for politicians. This isn’t a place for individual liberty. What is a good predictor, in fact, for hostility towards abortion rights is hostility towards other kinds of equity, gender and and racial. And so I think it’s crucially important that we actually call this what it is. And who made it easier for us this week? DULLEA But Senator Mike Lee, who said the quiet part out loud when he said actually he believes the court should be used as an instrument to protect against the majority, and that is, in fact, the weapon that the right wing has been honing the court to be for decades. And it is incontestable that this nomination is the capstone on that strategy, and that is why they are under so much pressure to push this through, cutting corners, violating norms over the will of the American people who really want to be able to decide their next president and have this president fill the seat. It is fundamentally because they understand that they are the minority. They are using the court to assert minority rule, and they know that that will have political consequences for them. And they’re racing to get ahead of it.

S3: And I think there’s two important things you just said. One is the weird kabuki around religious animus, right where you have Josh Holly, when you tell somebody that they’re too Catholic to be on the bench, when you tell them they’re going to be a Catholic judge, not an American judge, that’s bigotry.

S6: The pattern and practice of bigotry from members of this committee must stop.

S3: About how if anybody even invokes the word Griswold v. Connecticut, then everybody is full of of religious animus.

S6: I can only assume is another hit at Judge Barrett’s religious faith, referring to Catholic doctrinal beliefs.

S3: I don’t know what else it could be on the other side, not a lot of religious animus is expressed, but it’s a way of lashing it to religion in the ways you just described, right?

S4: Yeah. And I think that’s where we also have to unpack the history here, because we believe too much of the right wing’s narrative. The first time that religious liberty was invoked in the political realm, probably not the first time, but in recent history was when Jerry Falwell invoked it in nineteen sixty nine to fight school desegregation. He actually led a school of people and thought that said, it violates my religious freedom to have to dismantle my segregation academies and send my kids to school with black kids. And I found that so offensive, listening to so many of them from the Dyas this week rail about either questioning this nominee’s record as religious persecution or the threats to religious liberty when in the hands of the right religion has been used as a fig leaf for oppression for decades and decades. And in fact, most people actually understand the concept of religious freedom to me, like I get to practice my religion, but I don’t get to tell you what you have to do because of my religion. And in fact, they are arguing the total opposite now, credit where credit is due. Not a single Democrat took the bait. Right. So they ended up in this, as you said, kabuki theater argument with themselves. But what was clear, and that is they were trying to paint themselves, but by extension, this nominee as a victim of persecution in order to actually paint her as a sympathetic character and say it is nobody’s business to question her record when in fact, it is the highest order of business for these senators to question her record.

S3: And I think that what you just said is also the answer to my question about the Ginsburg rule. Right. So we have time and time and time again, Judge Barrett saying, you know, I can’t open Roe, I can’t opine on cases, I can’t opine on even Griswold. There’s nothing I can opine on. And in citing the rule that Ginsburg ostensibly laid out in her own hearing about no hints, no tips, no forecasts, but of course, here’s some audio of Justice Ginsburg talking at her hearing one of many times where she talked quite volubly for her about her vision of Roe v. Wade, the one thing one can say for sure.

S7: There was a massive attack on Roe v. Wade, it was a single target to hit, I think two things happen. One is that a movement that had been very vigorous, became relaxed, slightly relaxed, didn’t entirely go home, but it wasn’t as vigorous as it had been or that it might have been were it not that the court seemed to have taken care of the problem. So one thing is the. Once one side seemed to relax its energy while the other side had a single target. Around which to rally, but that was that’s my what if and I could be wrong about that. My view was.

S8: That the people. Would have. Accepted. Would have expressed themselves in in an enduring way on this question.

S7: And as I said, this is a matter of speculation, this is my view of what if other people can have a different view?

S3: And I guess the point is at least that this is one of those pincer moves where simultaneously cloaking yourself in a role that purports to be the Ginsburg rule and yet also using it to avoid doing exactly the thing that Ginsburg very happily and freely did at her hearing, which is talk about abortion.

S4: I mean, I find this to be the highest form of collective gaslighting that I can think of right now in political theater, because not only are they doing everything you’re saying, which is completely ignoring what actually happened, but they’re using our own icon and symbol of the fight for reproductive freedom, but all kinds of freedoms and rights in doing it. And it was, in fact, quite terrifying, as you said, to hear her invoke that to not only go where other nominees have gone. Right. I won’t talk about Roe because and let’s be clear, they don’t talk about Roe because they know they’re on the wrong side of it. That majority, vast majorities of Americans believe in legal access to abortion. But but as you said, birth control now is suddenly that we can’t actually just commonly except as settled law. And then even more disturbing, and I was really surprised that this did not make more headlines. She couldn’t comment on whether a president should commit to a peaceful transfer of power. She couldn’t comment on whether children should be removed from their parents if safety is not a concern. These are not cases. These are no laws. These are commonly held values that are uncontestable in American society. And I found that chilling.

S3: Yeah, I wrote a little bit about what it means that she was unwilling to just do the costless thing offered by Senator Klobuchar, which is to say, of course, absentee ballots are real. Of course, they’re part of democracy. The idea that maybe she needed to keep her mind open in case she’s asked to throw out all the absentee ballots was similarly chilling, just not just in so far as she wouldn’t make a statement of law, which is clearly right. But I think that for millions of Americans, we’re trying to figure out if they’re going to stand in a covid line or mail in a ballot to hear that maybe the next justice on the court, who, by the way, will be deciding this case, is prepared to chuck them all, I think, is really sort of participating in the very narrative that she should be debunking. I had the same reaction. I want to talk about Rove for a minute, because obviously that’s your lane. And I think one of the things that I was really struck by was this very facile conversation we keep having about this is about overturning Roe and Joni Ernst, saying overturning Roe is not going to be overturned. And Judge Barrett, you know, on the record speaking, saying, oh, it’s not going to be overturned. We’re just going to never find an undue burden that we can’t love. That’s the project here. It doesn’t have to be writing the sentence. Roe v. Wade is overturned and we’re seeing that clearly playing out in the states that are down to one clinic. And I wonder how we got into a situation where there’s this, I think, very, very misleading binary that unless the court strikes down Roe in its entirety, strikes down Casey in its entirety, abortion is safe. That’s just feels like it’s more gaslighting.

S4: Absolutely. And, you know, I think this is what we’ve been living through for some time is that since the early 90s, literally thousands of non medically required restrictions have been put in place for the only reason is to prevent access for people with less power, something that Aaberg called out very loudly and clearly. And I shouldn’t even say since the 90s, obviously in nineteen seventy six, the oppressive and racist Hyde Amendment was put into place to restrict low income women and disproportionately burdening women of color with financial barriers to abortion access. So the idea that this sort of everything is safe if we have ROE has been disproven all the way to the Supreme Court in twenty sixteen in the whole women’s health case where it was found that these restrictions amounted to not just to undue burden, which is legalise. Right. But actual insurmountable barriers for women and pregnant people who need to get. To reliable health care services to have abortions, and so I think it’s really important to ground this in the experience of people to say these are not future things. These are people today. Right. And I think we saw two things right. We saw Tillis and the nominee herself suggesting like nobody’s going to mess with Roe, which is another form of gaslighting. It’s what we’ve been hearing forever, which is like they’ll say when they’re running for president. I’m only going to nominate justices who are committed to overturning Roe, but then they’ll turn around and say, what’s with those hysterical women who are suggesting this nominee would overturn Roe? We saw that. And then we also saw people like Ted Cruz being like, what are these people’s problems with state rights? You know, let’s let’s give that they might overturn Roe. What is wrong with states being able to decide when we know that? The reality is we do not have people marching in the streets who are anti-abortion saying federalism. Now, what do they say? They say abortion is legal. Their end game is a complete ban, similar to what we did see in red states around the country. And I think that’s absolutely a myth that has to be dispelled. They are going for end game. The court as part of the strategy and end game is really, really frightening. It is already being lived. It looks like, as Senator Booker said, miscarriage is being investigated. It looks like a young pregnant woman who got shot in the stomach in Alabama and lost her pregnancy and was put on trial for manslaughter. Like these are real things that are happening in this country, and that is what has to ground any conversation about what rights are or are not at threat.

S3: And I guess tied to that, at least because I think the other move and it connects to Judge Barrat being unwilling to say Griswold was whatever super precedent is the thing that she doesn’t have a problem with. I mean, John Roberts conceded on Griswold.

S5: I agree with the Griswold court’s conclusion that marital privacy extends to contraception and availability of that.

S3: And I think that it’s worth talking about fetal pain bills. We had Lindsey Graham, you know, really talking about fetal personhood. I think that we get very, very myopic about talking about abortion. But what you’re saying is so important. We’ve got Sarah Pinelake elevated to the courts. She’s against IVF, she’s against surrogacy. This is not a line that is drawn necessarily post pregnancy at all. No, no.

S4: And it’s a very coherent ideology. I always find myself correcting people when they’re like, well, if they’re so against abortion, why don’t they fight for contraception? Because that’s not what they’re about. Right. This is the lie that we wrote about in the way that binds is the central lie that they are motivated by outcomes of individual pregnancies. Nothing is further from the truth. This is about reproductive oppression as a means of control and codifying into law what they believe natural family looks like. And that does go towards very terrifying things like surrogacy, IVF, lack of access to contraception, and in fact, not extending the benefits that are required to carry pregnancy to term when you want to. This is about a structure of people who are deemed acceptable, who have access to services and power and others who are not, who don’t. And that is the fundamental vision that we are confronting through this nomination and this capture of our court and the more that we have that conversation. So thank you for facilitating it. The more people wake up and realize we have got to call them out and fight on this.

S3: I have to ask you one last thing, which is the real reason I invited you, Alice, I listened to your interview on The Daily Show right before this all began. And with all due respect to Michael Barbaro, I felt like he was asking you in about 11 different ways, why did Dems just suck so bad at this? And I felt like you answered it every one of the times. But there was a way in which there’s a kind of a gamesmanship that is at work here that if feels akin to being like, well, you know, if you just had a better backhand, you would win this. But, you know, you’re just really bad at this game. And, you know, you let yourselves get pants on Merrick Garland and pancit again on Neil Gorsuch. And I’m I have to say, I’m finding that conversation both tedious and also it reinforces that this is some kind of constitutional pissing match. And if we just played better, we would not be in this situation. So maybe that’s like I’ve now done tennis and Aneurin, but I wonder if you could just help me help listeners understand why this framing of, you know, if you just didn’t suck so bad and believe in norms and comity and a functioning Senate and a court that cared about justice, this wouldn’t have happened.

S4: Well, who amongst us would not aspire to be better? Dahlia, I grant you that. Yeah. I mean, I think, look, has has the reproductive rights freedom movement made mistakes? Absolutely. And I was happy to discuss those with Michael Barbaro, just as I would with anyone. I think self-evaluation is really important in progress moving forward. What I found really disturbing was the false equivalence that the mistakes we have made, which are prevalent and movements that are iterating and growing and grappling with things like structural racism and the way that they have impeded progress was somehow commensurate with a minority of people who have literally subverted democracy to get their way, who have made sure that, you know, restricting abortion goes hand in hand with voter suppression so that the majority cannot have a voice who has made sure that reproductive oppression goes hand in hand with court capture, which is what we’re living through right now, who has changed the rules and the norms and violated trust of their colleagues who were engaged in good faith effort? And, you know, as I said on the show, and I’ll say it again, if if the central sin here is a belief in democracy, then we’re guilty. Right. But I don’t think that that pathway forward towards durable change and progress lies in conceding democracy as a way that we come to solutions that benefit the most people in this country. So if I’m a sinner, I’ll take it. I’m going to keep fighting for that. That vision.

S3: This has been an amazing conversation with my friend and truly one of my inspirations, Elise Hogue, president of NARAL Pro-Choice America, one of the leading groups that are fighting for reproductive freedom since 2013. And I really do again, say that if this stuff is interesting to you and I hope it is her book, The Lie that Binds published this past summer is a must read at least. Thank you so, so very much for your time. I know it’s been a busy week.

S4: Thank you so much, Dahlia.

S3: Our second guest today is a dear friend of the show, Pam Karlan is the Kenneth and Harl Montgomery, professor of Public Interest Law and a founder and co-director of the Supreme Court Litigation Clinic at Stanford Law School. Her primary scholarship involves constitutional litigation, particularly with respect to voting rights and anti-discrimination law. She’s argued a bunch of cases at the court. She’s been everywhere and done everything. And she’s, as you all know, exceedingly funny and we could use some funny. So, Pam, welcome back. Thank you for having me. And you should just know that we’ve had requests from guests on this show, Ellie Mistal, a couple of weeks ago said no Democrats should ask questions, only Pam should ask all the questions. And I’ve heard that parroted back at me all week. Pam, did anyone ask you to ask all the questions at this hearing on the Dem side?

S9: I can’t really answer that question, because that would be a policy question and I can’t answer it. But the answer is no.

S3: OK, I know you were not watching every minute the way I was, but I wondered if in your general sense of what happened at these hearings this week, you have some top line takeaway about anything that was really different or arresting or startling, something that we may have missed or something that for you was a marker of, huh? This is different even from John Roberts, from Neil Gorsuch from Brett Kavanaugh.

S10: So I think this hearing, it’s hard to imagine a basement below the cellar into which this hearing went, which is you had a hearing that shouldn’t have happened in the first place because we shouldn’t be having a nomination now. But beyond that, it was a hearing in which the Republican members of the committee, the majority of the committee, had announced they were going to vote for the president’s nominee before they even knew who the nominee was. And you had a nominee who refused to answer even some questions. I mean, the one that I found the most shocking in a way, was that Amy Klobuchar, our question about do you think that intimidating voters is illegal? And the correct answer to that question for somebody who’s trying to nimbly avoid doing much is to say there is a federal statute that makes it illegal to intimidate voters. Whether a particular act rises to the level of being illegal under that statute is something that I can’t answer in a hypothetical situation. But to refuse to answer whether intimidating voters is illegal or not is to say there’s no point to having hearings here at all, because I’m going to tell you absolutely nothing that will enable you as a senator to make any kind of decision about whether you should vote to confirm me or not. You know, no more at the end of the hearing than you do at the beginning.

S3: The one that similarly rattled me, Pam, wasn’t even voter intimidation. It was, again, Senator Klobuchar the next day saying people are trying to decide if they should vote in the midst of a pandemic and they want to know if they can vote by mail. Is absentee voting a part of democracy? I think the correct answer to that, again, is yes. And I the reason it floated even above the voter intimidation in the you know, can the president unilaterally delay the election or, you know, is a peaceable transfer of power, all of which she refused to answer? The reason the absentee ballots rattled me is that the implication that this is an open question when it is in fact the party line, it is the posture that is being taken by Donald Trump and by Bill Barr without any evidence that there’s some problem with mail in balloting. I felt as though it was different in kind only because it was injecting into the discourse, the very uncertainty that whips up a lack of trust in absentee voting.

S10: Well, I mean, I go back to something you wrote right in your sleep, come right after the nomination here, which is you tried to put yourself into the position of asking yourself if you were judging me. Mikuni Barrett, how would you feel about what’s going on here? And I think the line you use is like, how would you feel standing next to a man you wouldn’t trust to be in a room alone with your teenage daughters? And the thing here that’s so shocking is I. I don’t understand why she wouldn’t simply say given. Of course I can be fair, but I recognize that many people may think that, you know, a president who promised to put me on the Supreme Court so I could vote for him to stay in office. I can understand how many Americans might think that that was improper. So I’ll recuse myself from cases involving this election. I mean, I just you know, as you can hear, I’m a little bit speechless because the idea, of course, the president can’t change the date of the election. There’s a statute that says that. So what is the cost of simply saying? There’s a statute that says that? I’m not going to answer whether in a particular case, the president is or isn’t complying with that statute. But, yes, there’s a statute on the books, and it’s the same thing with the absentee voting, which is, yes, many states have changed their laws about absentee voting to make it easier this time around because of covid, some people can vote absentee in all 50 states. I’m not going to talk to you about whether a particular extension or refusal to extend absentee voting does or doesn’t violate the constitutional law that might come in front of me. But I can tell you absentee voting is a thing in America and it’s been a thing in America since the Civil War, which, by the way, is where we got the 13th, 14th and 15th Amendments.

S3: That is a good answer. No, I think it was it was a funny participation in the same weird voter suppression zygotes that felt just really hinky to me. And I again, I think you’ve nailed it. It was cost free to say I’m just going to be for presidents leaving peaceably, because I think that’s probably not a hard thing to say. And maybe more urgently, you know, we’ve got a president who continues to crow about extrajudicial assassinations of antifa. Like is the answer to that question. I don’t know. It could come before him. I mean, it’s really every single lawless thing the president does can’t be in play just because he does it right.

S10: The thing about this hearing from the get go is everything that’s been done here has been done in such haste because the Republicans think there’s a realistic chance they may lose the election and not be able to fill this seat and. The election, therefore, is so critical to people’s sense of what this nomination was about, what these hearings were about, and the idea that, you know, that she doesn’t feel comfortable saying, of course, there has to be a peaceful transition of power if a president who’s an incumbent loses. I mean, three of the last seven incumbents who ran for election lost and all of them left the office. You know, in the way that we’ve always had a peaceful transition of power, this is this is really the first president in American history who doesn’t seem to believe in a peaceful transition of power.

S3: I want to ask about the academic ratings, because there’s a weird. Game here, where, in fact, in some of her academic writings, including about whether Catholic judges should recuse in death penalty cases, including writings on stare decisis in the role of precedent, she’s written pretty openly about very controversial things. And, you know, unlike Robert Bork, say, who wrote openly about controversial things and then waxed expansive on them. Her position seemed to be that old was just academic writing. And so I guess I wanted to ask you as an academic writer, is everything that you write just fanciful thought experiments? No.

S9: Occasionally you do write something that’s a thought experiment. The thing to keep in mind is what you write as an academic and what you could do as a judge or as a justice may be quite different from each other. So it’s not that somebody’s academic writing necessarily tells you exactly what they would do in in a very different role. I mean, you know, there’s a kind of what’s often referred to as role morality. You act differently in your public life than you necessarily would in parts of your private life. You act differently as an academic or as a lawyer than you would as a judge.

S10: But here’s the striking thing about where we’ve gotten to from the Bork hearings to the Barritt hearings, which is Robert Bork. What you know, we knew what he thought about Griswold, and that was part of the reason that he wasn’t confirmed. And now Judge Barrett refuses to say whether she thinks Griswold is correctly decided or not. And it doesn’t seem to be concerning to a majority of the Senate.

S3: Well, I did want to ask you about super precedent, because it’s kind of come to be the caped crusader of these hearings, right? Like, you just slap on the cape. I don’t even know how you. Possibly can align something being super precedent with originalism in the way she thinks about. Precedent generally in stare decisis, but can you just give us a brief it’s a small world tour through the wonderful world of super precedent and how where it comes from. I know it’s an academic concept. I know John Roberts talked about it. I guess I’m just confused because I remember John Roberts being pretty clear that Griswold was not something he wanted to disturb. And as you say, Griswold apparently is not on the list. Is there like a secret list somewhere of super precedents? And what did Marbury have to do to get on it?

S11: So super precedent is another way of saying if I had the courage of my originalist convictions or if I had the courage of my textualist convictions or on the left, if I had the courage of my, you know, of my pragmatic convictions or my or my convictions about pursuing justice, I would decide this case in a particular way.

S12: But because there is a precedent on the books, that’s really important and really foundational in some way or another, I’m not going to disturb it. Super precedent is not is not there is is not an actual thing in the world. It’s simply a way of saying there are some precedents that we’re just not going to go back and revisit, even if we think they were really, really wrong. So it’s just kind of super it’s kind of stare decisis on steroids. Right. And each person is going to give you a different list of what they think of as super precedents.

S3: Does her unwillingness, Pam, to put Griswold on the list mean that people who are worried, for instance, that she thinks life begins at fertilization or that IVF is somehow problematic? Is she doing signaling there or is that just she’s parsimonious with her super precedents and wants to limit them to Brown and Marbury so she doesn’t want to limit them just to Brown and Marbury?

S12: If I understood the article correctly, one of the other person she listed there was what’s called the civil rights cases, a case from the nineteen eighties that says that the Fourteenth Amendment equal protection clause really only reaches government action. So it’s not like just Marbury and Brown and everybody has to put Brown on their list because at least before this administration, anybody who wouldn’t say Brown was correctly decided was not going to get nominated or confirmed. I mean, we then had a parade of lower court judges nominated and confirmed by this administration and this Senate who wouldn’t say that they thought Brown was correctly decided. They didn’t say it was wrongly decided, but they wouldn’t say it was correctly decided. The reason she won’t put Griswold on the list is it’s it’s on the road to Roe. And so she doesn’t want to talk about Griswold being a super precedent because then she knows she’s going to get questions about, well, what about Roe? And she doesn’t want to answer those questions. Griswold itself is not at risk because directly because there’s no state in the country that in the foreseeable future is going to criminalize the use of contraceptives as a whole. You might, though, have some states that start criminalizing contraceptives that they believe even if there’s no scientific basis for it, are abortifacients. I mean, if you think back to Hobby Lobby, right.

S11: Part of Hobby Lobby, objection to the list of contraceptives that the FDA had approved that would have been part of its health plan was they thought some of these things were like having an abortion and they therefore didn’t want to didn’t want to subsidize or be complicit. So you could imagine a state that makes it very difficult to get certain forms of contraceptive because the a bunch of folks in the state legislature are convinced by God knows what to think, that these contraceptives are abortifacients. I mean, if if Roe went down, you could you could have that as as a as a possibility. But I don’t think there’s any state that’s just going to outright say married couples can’t use contraceptives anymore.

S3: And and when she says that for her purposes, it’s not a super precedent, as long as there’s some move to destabilize it. And that’s the week after Clarence Thomas and Sam Alito are inviting someone to destabilize Berghofer. It it slightly elides the problem of the ways judges are working to disturb. Even settled precedent right now, right? I mean, judges are in on the on the con in some sense about what is settled and what is not settled. And we have judges all over the place who are calling for things that we thought were understood to be questioned.

S9: Yeah, I mean, you know, that’s the attempt by some of the folks on the conservative side of the American bar trying to get rid of the administrative state. Right. You would have thought that was settled, that we could have independent agencies because we’ve had them for 70 years. But there are people who would like to unsettle that. And obviously there are people who would like to unsettle Roe. And, you know, two of the justices on the Supreme Court seem in in a very odd case, I mean, the Kim Davis case is an odd case to bring up. Oberg fell in because she is not a private person who objects to having to bake a cake or take photos of a same sex wedding.

S10: She’s a government official who’s supposed to stamp the marriage licenses of people when they come in. And the idea that she can impose her religious beliefs because she’s a government official, a two guys who want to get married, I don’t think that’s a free exercise issue. I think that’s an establishment clause issue at that point. And so for them to talk about, you know, it’s so terrible to call her a bigot. Nobody is calling her a bigot. Everybody is just saying, do your job. Or resign, but you can’t hold a government position and not do what the government’s required to do. She could be the nicest person in the world. She could have the sincerest religious beliefs of anybody. But her job is to hand out marriage licenses in part. And there’s no difference between her saying, my religion tells me I can’t give a marriage license to two gay guys who want to get married and her religion saying, I can’t give a marriage license to somebody who got divorced before because my religion doesn’t recognize divorce. So I’m not giving you a marriage license. How can you can’t run a government on that.

S3: Right. Right. And that’s why the claims that this is state bigotry is so weird. Yeah.

S10: And it was so gratuitous because it’s not like Justice Thomas and Justice Alito wanted to grant her petition. They just wanted people to know that they’re really pissed off about Oberg, F.L. and they’re and they’re and they’re pissed off that the law is clearly established that same sex couples get to marry.

S3: I wanted to ask you about all the stuff that didn’t come up in the hearing that if you’re a wonk, you’re listening for and part of it is just this whole kind of. Chevron deference, administrative state, non delegation, like there’s a pretty concerted. Attack on the administrative state, on the regulatory state that has been happening in huge ways with huge consequences, and I think that the aperture is so narrowly focused on the Affordable Care Act and Roe that we’re missing this huge, huge thing that is going to have massive consequences for like the EPA and the CDC and the government as we know it. And I just wonder if you heard or saw or just. Sensed anything coming out of this hearing that makes you less than sanguine about the future of the administer state?

S9: Well, as far as I could tell, there wasn’t any real discussion of it at all. And it’s obviously a really important issue, you know, and it will be an especially important issue if what happens in November is, you know, that the Democrats retake the White House because there’s been a two front attack on the administrative state over the last four years. So there’s the you know, there’s the try to get it knocked out in various ways in the courts. But, you know, you also have an administration that’s been hollowing out the administrative state and all kinds of ways, failing to appoint people, failing to enforce the law, deregulating right and left when it can. You know, it’ll be really interesting to see what happens going forward if you have a court that is not committed to maintaining the administrative state as it as it came down to them.

S3: Yeah, that’s the stuff that scares me, because I just think it’s not in the discourse. I think the other thing that I wanted to ask you about that doesn’t feel like it’s in the discourse enough is just voting rights in this election. And there’s a bunch of pieces of it that are scary. One is the couple of hundred lawsuits that are percolating. One is, you know, panels of Trump judges who think that it’s okay to have one drop box in every county in Texas. You know, the census decision batted away in a per curiam without much recognition, that there’s hundreds of pages of findings of fact. It just feels that even the courts, as currently constituted, put aside Amy CONI Barrett, the Purcell principle that Rick Hasen keeps telling us about John Roberts, not a fan of expansive voting rights in the next three weeks. How concerning is it that there are these Bush figures and there are actually now Trump cases that are relying on Bush v. Gore itself? I’m just quite worried about the ways in which we have not sufficiently surfaced, even on this show where we talk about voting constantly, the chaos of throwing this to the courts.

S9: So, you know, there are two different things that can well, three different things maybe that converged here. One is the huge pressure that covid has put onto the voting system. You know, huge numbers of people are planning to vote by mail for the first time. Huge numbers of people are eligible to vote by mail for the first time because of covid related relaxations on restrictions on vote by mail.

S10: So, you know, there is a lot of ferment that’s just coming from the fact that the rules of this election are changing in various ways close to election time, not because people hadn’t thought about elections before, but because we live in a different country today. I mean, the fact that you have to wear a mask every time you go out and you and, you know, the only only by the grace of the airlines will you maintain your airline status is a function of covid.

S9: And so that puts huge pressure and it puts pressure on even voting in person because voting in person is harder when you’ve got longer lines. The average age of poll workers in the United States is somewhere north of 60. And it may be hard to get those people to, you know, to to be poll workers like. So you have that. Then on top of that, you have vote suppression going on of the kind that would have been going on in this election. Regardless, all of it made worse by Donald Trump, who is making it much harder for people to have any confidence in the system. And and and confidence in the system breeds a system that works better. You know, and he’s talking about he wants to have people, you know, at the polls to watch, which is another way of saying voter intimidation, which, in case you didn’t know it, Amy Klobuchar pointed out, is illegal as a matter of federal law.

S10: And then on top of that, you have a Supreme Court that is applying a version of what is the Purcell principle that I just don’t think is actually what Pacelle itself was about, which is their new version seems to be. You can never make it easier for people to vote if you if a court is making it easier for people to vote close to an election. But that wasn’t what the court said in Pacelle itself. What the court said in Pacelle itself was you shouldn’t make changes close to an election if those changes are likely to lead to voter confusion, that will deter people from voting. And they’ve just abandoned all of that. Second part in some of these shadow docket decisions, you know, where they’re you know, where a district court has spent a bunch of time looking at this and said, look, we need to adapt the system.

S9: And the Supreme Court saying, no, actually, you don’t. Now, what’s going to happen after the election depends almost entirely on how close the election is in some states where it would make a difference to the Electoral College if the election isn’t close. The Supreme Court’s not going to take any cases at all. The problem is, if the election is close, which cases will the Supreme Court take and what law is it going to apply? Because I’ll tell you, if you’ve ever tried to read the Electoral Count Act, you know, that way lies madness.

S3: Yeah, all the ways madness. I mean, there is when everything is coming up. Madness. Pam, what what are you telling people who are I know you’re talking to people about voting elections, law about. What they should be doing other than have a plan, have a plan, have a plan. What can my listeners take some heart in other than the fact that those dueling town halls were just like crêpe testing?

S9: It wasn’t that wasn’t that amazing. I mean, wow is all I can say. Just just. Wow. So one thing is, you know, people should go to either healthy elections dog, which is the Stanford MIT project, it’s nonpartisan or vote dog to make sure they understand exactly how to cast a ballot that will be counted wherever they live because there are rules about this. My favorite is, you know, one of the problems right now is the so-called naked ballots, which is people who don’t put their ballot into the internal envelope and everything and the Stanford healthy elections. People have this charming little illustration on their website of like instructions on how to deal with this. And it’s like first put your ballot into its underpants, which is the internal envelope, then put your ballot into its pants before you mail it. And you may have seen there’s a fabulous public service announcement by the I think it’s the commissioners of Allegheny County in Pennsylvania. And they’re all topless with little things over them saying don’t put your ballot out there naked. Right. So if you go to vote dog or you go to Stanford, healthy election is Stanford, MIT Health, the elections project, dawg. They’ll tell you here are the rules you need to follow because the rules may have changed since the last time you voted. Even if you last voted in 2018, they may have changed in your state. So you want to follow the rules to make sure your ballot can get counted and that you can cast a ballot and have it counted. That’s the main thing. The second thing is people need to remain calm, especially because it’s entirely possible, given the combination of a huge number of vote by mail ballots coming in. And we’re seeing huge numbers already, but a huge number of them coming in. And the rules in some states about when you can start counting them. So in some states, they’ve already opened the ballots, process the ballots and put them into the tabulator in other states. You can’t do that until the polls close on election night. So people have to remain calm and not expect to go to an election night party and know by, you know, 8:00 p.m. on the West Coast what the results of the election are unless the election is a blowout for one side or the other. So those are my two. Those are my two big things, is vote early and stay calm on election night.

S3: Pam, can we talk for one quick second about originalism? Sure. You know, I know there’s a bunch of flavors and there’s an original public meaning and there’s textualism. And, you know, we had 55 go rounds about this, the Baskin Robbins theory of originalism.

S9: Let’s turn to the rocky road.

S3: Yeah, I’ve been taking it to the woodshed a couple of times this week for not taking it sufficiently seriously. But I feel as though my might sort of take away critique right now of originalism is that it’s about power and minority rule, and it’s a fancy way of enshrining status quos of power and minority rule. And it feels antithetical to the vision of the Constitution that I think we’ve been working our way toward, at least in the last few decades. But maybe I’m wrong. Maybe I’m certainly open to having a theory of judicial restraint. And I think that’s originalism. Principle charm is that you get to say things like, oh, it’s it’s not we’re not policy makers. We’re not legislating from the bench. You know, when we ask you to expand gun rights and kill abortion, that’s not policy. That’s like I get the allure. But really, what is what am I missing about its myriad wonderful charms?

S9: So, you know, the problem with originalism is, first of all, as I was just saying, it comes in like as many flavors as Baskin Robbins ice cream. And many of them have about the same nutritional value. There are some questions we can answer by asking what did the framers, what did the framers intent?

S10: But a huge amount of how we experience even pretty clear parts of the Constitution today are totally different than how the framers thought about them. I mean, the framers thought that most of our presidential elections were going to be decided in the House of Representatives because no candidate would receive a majority of the electoral vote.

S9: And so originally the top five and now the top three vote getting candidates would go to the House of Representatives and it would be and the House would select.

S10: On a one vote per state basis, you know, so the idea that originalism answers the hard questions in constitutional law is just, you know, is just fake. It doesn’t answer the hard questions. The other thing that you can see is more and more originalist struggle to explain how a case they like fits originalism or a case they dislike. Doesn’t mean, you know, my colleague Mike McConnell is one of the smartest constitutional guys around, struggled mightily to try and explain how Brown was consistent with the 14th Amendment. And I think Mike Carmens critique of that, which says, no, it’s not, is is probably right. And in any event, Earl Warren made it absolutely clear that he was not issuing an originalist decision. He said we can’t turn the clock back to 1896 when Plessy against Ferguson was decided, let alone to 1868, when the 14th Amendment was decided, because public education plays a different role today. And therefore, when we apply the 14th Amendment, we apply a different rule today. So, you know, originalism is a way of pretending that you are our kind of forced to your decision, not by your personal preferences or not by your worldview or the like, but by the law. But, you know, liberals look at what was the original understanding, just the way conservatives do. And you can see in Heller, the DC guns case, you know, Justice Justice Stevens and Justice Justice Scalia both use originalism. They both use textualism. They both use pragmatism. They both use, you know, the overall structure of the Constitution and they come out to different places. And it’s not because one of them was smart and one of them was stupid. It’s not because one of them was honest and the other one’s a liar. It’s because these are questions of judgment. That’s why we call these people judges, I suppose, instead of calling them mechanics is this is an issue of judgment and people’s world view and people’s training and people’s sense of the relative importance of originalism and textualism and structure and pragmatism in any given case are going to vary.

S3: Pam Karlan is the Kenneth and Harl Montgomery, professor of Public Interest Law and a founder and co-director of the Supreme Court Litigation Clinic at Stanford Law School. She’s also really, really, really the only person I wanted to talk to at the end of this extremely harrowing week. Pam, thank you for being with us yet again. Thank you.

S2: And that’s a wrap for this episode of Amicus, thank you so much for listening and thank you so much for your letters and your questions. You can always keep in touch at Amicus, at Slate, Dotcom, or you can find us at Facebook dot com slash amicus podcast. Today’s show was produced by burning him. We had research held this week from Daniel Maloof. Gabriel Roth is editorial director. Alicia Montgomery is executive producer. In June, Thomas is senior managing producer of Slate podcasts. We’ll be back with another episode of Amicus next weekend. Until then, take good care of your health. Take care of each other, make a plan to vote. Hang on in there.